Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Graham Allen: On a point of order, Mr. Illsley. Owing to an oversight, new clause 31—formerly new clause 23—did not appear on the selection list yesterday. I know that that was entirely accidental and that it was an administrative problem, but could you tell us how it might be handled for the benefit of the Committee?

Eric Illsley: I understand that the new clause had been tabled and should have been printed on Friday. It should have appeared on the amendment paper yesterday. Had it not been for the printing error, it would have been available for selection. It is therefore my intention to call it when we reach it in today's proceedings.New clause 26 Excluding the civil liability of the victims of crime

New clause 26 - Excluding the civil liability of the victims

'.—(1) A person who has been convicted of a criminal offence before a relevant court shall have no civil action for damages in respect of personal injury caused by the victim of the offence for which that person has been convicted. 
 (2) Subsection (1) shall only apply to personal injuries caused during the circumstances of the offence for which the person was convicted. 
 (3) For the purpose of subsection (1) ''victim'' is defined as any person natural or corporate— 
 (i) whose interests were affected or threatened by the relevant offender, or 
 (ii) who believed on reasonable grounds that their interests were affected or threatened by the relevant offender; 
 (iii) who was, at the time of the offence, a servant or agent of any person falling within paragraphs (i) or (ii) and who either knew or reasonably believed that the person's interests were so affected or threatened by the relevant offender. 
 (4) For the purpose of subsection (3) ''interests'' includes— 
 (i) any proprietary interest; 
 (ii) a personal interest in avoiding physical injury. 
 (5) For the purpose of subsection (1) ''damages in respect of personal injury'' shall be defined to include all consequential loss suffered by the offender.'.—[Mr. Grieve.]
 Brought up, and read the First time.

Dominic Grieve: I beg to move, That the clause be read a Second time.
 As the Committee will see, the new clause raises the issue of civil proceedings brought by criminals against their victims after their conviction and arising out of the circumstances in which they committed the offence. I felt that tabling a new clause that talked in absolutes was the best way to approach the issue if we were to have a reasoned and sensible discussion. The new clause would wholly deprive anyone convicted of a crime of the ability to sue or bring civil proceedings against their victim on the basis of the circumstances 
 in which they committed the offence. I felt that that was the best way of proceeding, although one may advance perfectly reasonable arguments against my proposal or seek to temper its full force. 
 Hon. Members will be fully aware of the extent to which the current system has given rise to serious public disquiet. There have been several high-profile cases, one of which is still running. Individuals who have committed serious offences, such as burglary, and who were injured by their victims, have brought civil claims against them. That has given rise to public outrage—there is no other way of describing it. The Martin case is a classic example, but there are others. Five or 10 years ago, for instance, there was a case involving a person who owned an allotment in the north-east of England. Someone persistently broke into and damaged the cabin on the allotment. Eventually, the owner lay in wait for him and caused him serious injury when he appeared. The owner was subsequently convicted, but the victim brought civil proceedings. 
 The new clause would prevent such cases. One can advance perfectly good arguments against owners—the victims—using excessive force against aggressors, but there are sound public policy reasons for arguing that someone who commits a burglary or theft should entirely forfeit their rights under the civil law. Although the homeowner in the Martin case may have been properly convicted for using excessive force, that does not give the victim or his relatives the right to bring civil proceedings when the injuries sustained were the direct result of his own criminality. 
 The public are not well aware of how the system works at present. It is perfectly possible for a criminal victim who has been injured in the course of his crime to bring civil proceedings against the person who injured him. He may recover damages. He may however—this happened in the case that I cited from the north-east of England—find that his damages are substantially reduced for contributory behaviour or negligence. I think the reduction in that case was 75 per cent. The public do not see that: they see a person initiating legal proceedings—frequently brought with the backing of legal aid—to seek damages arising from his criminality. That is a cause of deep public disquiet, and if I understand the Home Secretary's response on ''Any Questions?'' on Friday, it seems to be a cause of considerable disquiet to him too.

Humfrey Malins: Does my hon. Friend agree that understandable public outrage is usually based on press reports that are at best misleading? Such reports fail to make the point that in an action by a so-called victim, contributory negligence applies and the damages would be greatly reduced. If the press were more responsible, the public outrage would perhaps be reduced.

Dominic Grieve: My hon. Friend is quite right. That is why I explained that I intend to point out the pros and cons of the new clause. It is, however, a proposal that the Committee must consider.

Paul Stinchcombe: I wonder whether one of the cons might be that a prostitute who
 stole from a client and who was then raped and beaten would not be able to claim any damages at all.

Dominic Grieve: The hon. Gentleman gives one example, but let us take another: two 13-year-old boys climb over a wall to steal apples, for which they may subsequently be convicted of theft, but the homeowner, who might have seen them at it five or six times, loses his temper and beats them with a stick, causing one of them serious injuries. In such circumstances, should that 13-year-old be deprived of the opportunity of bringing civil proceedings? I am extremely mindful of proportionality. However, proportionality does not mean that the Committee should simply shirk the matter, as there is considerable public concern.
 I will come to several ideas that the Committee may like to consider—ideas that I describe as halfway houses.

Paul Stinchcombe: The hon. Gentleman is right that we should not shirk the matter, but it is also right that we should reject the new clause.

Dominic Grieve: The hon. Gentleman may have detected from my opening words that I am unlikely to press it to a vote. Nevertheless, I thought it right to table it in those terms, and I did so quite deliberately. I thought that in that way we could consider one end of the spectrum.
 Some people, who are not necessarily wrong, will say that it is all very well, but a person who uses excessive force against someone who is committing a crime against him merits the sanctions of the criminal law. However, in those circumstances there should not be an absolute right to bring civil proceedings. Although some would say that that is an excessively harsh rule, I do not think that it is wrong as an absolute moral principle. Those who choose to commit crime—this relates to both children and adults, but especially to adults—may be taken as having to accept the consequences of those actions. If they carry out a crime that is likely to excite or anger somebody, it is difficult for them to complain if they suffer injury as a result. That point goes right across the spectrum, from the householder who may be able to claim legitimate self-defence so that not a penny is recovered, to somebody who uses greatly excessive force. Nevertheless, people who go out and choose to commit crime, especially adults, may reasonably be said to have forfeited their rights to bring civil proceedings if they suffer injury as a result of their own wrongdoing. 
 Let us move away from that absolute stance for a moment and consider what might be done to meet the public disquiet, which my hon. Friend the Member for Woking (Mr. Malins) rightly said might in part be a result of misreporting. However, the newspapers and the public have latched on to the fact that civil proceedings are being commenced and that public money is being made available to bring them in circumstances in which they cannot see the smallest shred of justification. They would express horror if a 
 single penny were paid over to that criminal victim in the event of the litigation succeeding.

Humfrey Malins: My hon. Friend makes a good point. I simply add that public money is used, which is in stark contrast to what happens to the victim of the crime, who may have received absolutely nothing by way of compensation.

Dominic Grieve: That is absolutely right. For many victims of crime, the consequences of being victims often do not allow for compensation, although if they suffer injury themselves, there may be recourse to the Criminal Injuries Compensation Board. Very often, however, there are material losses to the victims—especially the poorest or the uninsured—from which they never recover. Leaving aside the conviction and sentence for the offence, a startling aspect of the Martin case is that on release it will be unsafe for him to return to his own home. That has been widely reported in the newspapers. It has been suggested that he will have to be sent to Australia as an exile. Furthermore, during his imprisonment his house appears to have become ruined, and he will suffer serious financial consequences, over and above the conviction that he received for using excessive force. Those matters are all likely to excite adverse public comment on how our system of justice operates. We cannot get away from that.
 I do not know what attitude the Minister will take, and I shall be interested to hear from him. As I said, I understand from the Home Secretary's reply on ''Any Questions?'' on the radio on Friday that my concerns appear to be substantially shared. I do not know whether things have changed from Friday to Tuesday, but I should be grateful to hear the Government's response. 
 There are, of course, some possible halfway houses, and I simply float those proposals for the purpose of discussion. It might be possible to frame legislation more narrowly than I have done in the new clause to provide that the case of a person who wishes to bring civil proceedings as a result of a crime committed by him would have to pass some preliminary hurdle, examining the issue of proportionality. That would provide the court with a speedy mechanism for saying, ''What happened to you was not so disproportionate to the offence that you committed that you should have a right of action,'' and preventing the action from proceeding. That would also allow the courts to explain publicly why certain cases, in which it appears that the injury suffered by the criminal was not disproportionate, should not be allowed to proceed. That might go a long way towards reassuring the public about the operation of the system.

Paul Stinchcombe: If the hon. Gentleman is seeking proportionality, what is wrong with using the existing doctrine of contributory negligence, which specifically determines that compensation should be granted in proportion to the responsibility of others for the injuries suffered?

Dominic Grieve: I am not persuaded that the principle of contributory negligence, which I understand well enough from practising in personal injury cases,
 marries well with circumstances in which an individual has set out to commit a crime. I accept that it would operate differently in each case, but there is a public policy argument that there should be no right to litigate except in cases of major disproportionality. Any element of disproportionality should be sufficient to get over that hurdle, although in considering that shift of the goalposts I should like to hear the Minister's views, as well as those of other members of the Committee.
 This is a serious topic for discussion on which the Home Secretary appears to share our concerns. If we are not careful, we shall give the public the impression that the civil justice system is a gravy train, which can be used and exploited by people who they feel should never be allowed to bring a civil action. There is a danger of bringing the law into disrepute. I hope that the Minister will be able to help the Committee on that point.

Humfrey Malins: I support what my hon. Friend said. I will not reiterate his arguments but will focus on the general principle of self-defence. The new clause points to an area of our law that is unsatisfactory and brings into sharp focus the issue of self-defence in the criminal law. The troubles that we read about often come from cases involving self-defence. I hope that the Government will introduce their own proposals along the lines of the new clause.
 It is a well-known legal principle that an assault in self-defence is not an offence, because a person who is under attack or threat of attack, or who believes that he may be under attack or threat of attack, is allowed to use force to defend himself or his property, subject to that force being reasonable. What constitutes reasonable force depends on all the circumstances of the case. In any trial involving self-defence, directions are normally given to the jury on the basis of those circumstances, and of answers to questions about whether the attacker was on his own, whether he had a weapon, what the domestic situation was and how vulnerable the victim was. One gradually reaches the point at which the jury are left to decide whether self-defence applies. 
 There is always a direction to the jury that they should be aware that a person who is under attack cannot be expected to weigh precisely the amount of force needed in self-defence. There is a slight presumption that if the person thought that he was using reasonable force, that might constitute self-defence. 
 The question of self-defence is a regular feature of assault cases and as regular a matter of law as any other that crops up. By and large, it works well. However, the classic cases that get into the press—those that cause the public to become distressed—raise the wider issue. The papers are partly responsible, in that the public read of a man being assaulted or burgled—the victim—who, having fought back in some way, finds himself on the receiving end of a writ. It is a good thing that that point has been brought to the attention of the Committee through the new clause. 
 The hon. Member for Wellingborough (Mr. Stinchcombe) drew attention to the sort of extreme case on which we would all agree. It is plain that if, for example, a prostitute stole from a client and then got herself beaten severely, she would be prohibited from bringing a claim. The same would apply in the apple-scrumping case mentioned by my hon. Friend the Member for Beaconsfield (Mr. Grieve). A normal person would say that the reaction was completely over the top in terms of self-defence, and of course the victim should be able to bring an action for damages. Similarly, if somebody is caught by me stealing a pot plant from my garage, which is open to the street, it might be burglary. There is no disagreement about that. 
 However, there are cases at the other end of the scale that might pose greater difficulties, even allowing for contributory negligence. Take a situation in which one is in one's home at night, perhaps alone. A burglar comes in and, very frightened, one goes downstairs to see what is going on. One notices straight away that the burglar is either armed—this is important—to extent of having, say, a knuckleduster on or a poker in his hand. In a fit of fear, one takes what might subsequently be thought to be a dramatic step. One takes the shotgun down from the wall and shoots the burglar. Who knows whether self-defence would apply? The view taken by the jury would depend on the directions that they were given and on the facts of the case. 
 However, the point is that there is a potential sticking-in-the-throat problem when the civil action by the victim—in this case the burglar—takes place. The burglar is a man aged 25 to 30. Let us assume that the damage done by the householder is brief, not prolonged, but of such severity as to render the burglar incapable of active work for the rest of his life. It is not inconceivable that the victim, who may have a rotten bad character, may seek to commence a civil action. That could involve his suing for, shall we say, £500,000. The difficulty arises that, even with a strong contributory negligence system, if the so-called burglar—the wrong 'un—is found to be not just 90 per cent., but 95 or 96 per cent. contributorily negligent in a civil court, his original victim can still end up paying out a substantial sum. That sum may be £4,000, £5,000 or £6,000, whereas a blameless suer would have got £500,000. Even on that level, however, something sticks in one's throat, which is why that point must be addressed.

Paul Stinchcombe: The hon. Gentleman is making a powerful speech against the new clause and in favour of the existing system. Does he agree that the new clause fails to distinguish between good and bad cases and will treat all cases exactly the same? The beaten prostitute would not be able to sue for damages.

Humfrey Malins: The hon. Gentleman, whom I have known well over the years, is teasing me. He said that I made a good, powerful speech. I then waited for the punchline, which was also extremely powerful but said that it was against my own argument. I take that on the chin, as I take all such remarks.
 I still believe, however, that the fundamental issue needs to be addressed. Although we are absolutely of 
 one mind in relation to the extreme cases that the hon. Gentleman and I mentioned, we nevertheless have a problem with the so-called plaintiff in the action, whom we have called the wrong 'un, being capable of recovering £4,000, £5,000 or £6,000 from the original victim when the plaintiff may have been 99 per cent. at fault. In that situation, many of us would say that there could and should be an absolute bar and that no money should be recovered. 
 The very fact that the issues of self-defence and the ability to bring a civil action when one is the original and serious wrongdoer have been highlighted by my hon. Friend the Member for Beaconsfield reflects public concern. Such concern must be addressed because the public are very good at assessing what is fair and reasonable in life. The public, together with my hon. Friend, have identified a potential unfairness in the current system that must be addressed. 
 I am not entirely certain whether the laws on self-defence in criminal cases or contributory negligence issues need to be subtly revamped, but my hon. Friend has done the Committee a service by pointing out a problem. If today's debate enables us to move even slightly closer to a solution that will cure some of the public's genuine concerns, it will have been worth having.

David Heath: I am grateful to the hon. Member for Beaconsfield for introducing the debate and the way in which he did so. It is an important matter that substantially exercises members of the public. People are concerned when they hear of such claims going before the courts. They are especially upset when such cases are funded by legal aid. However, that is a most unfair distinction because it suggests that successful criminals may bring proceedings but unsuccessful ones may not. That is an unsound basis on which to make a distinction. However, it is undoubtedly a concern on which the Committee ought to reflect.
 I reject the solution offered in the new clause, as I think does the hon. Member for Beaconsfield. The tenor of what he said is that he does not actually believe that an absolute prohibition would be the right solution. As he said, it is a matter of proportionality. It is interesting that he should raise the case of the allotment holder in County Durham. I may be wrong, but my recollection is that the chap rigged up a shotgun inside his allotment hut. That is not a proportionate response to someone who is interfering with one's leeks. Even under those circumstances, however, contributory negligence cut in and vastly reduced liability for civil damages.

Dominic Grieve: That case is sufficiently long ago for me not to be able to recall it correctly, but I think that it was not leeks that were being taken but tools from the shed. Numerous complaints had been made to the police, who were unable or unwilling to help. That was an example of someone being forced to extreme measures by the failure of our law and order system to offer adequate protection.

David Heath: I do not want to belittle that case, or to appear unconcerned with the basic principle, but public concern is very much driven by the perception that the police are not able to provide adequate protection, particularly in rural areas. People feel very alone when faced with persistent wrongdoing. An independence of spirit, to be found especially in rural areas, can lead people to believe that they are capable of looking after themselves. If they do so in such circumstances, they can find themselves surprised to have wrongly assessed the level of risk and the response appropriate for self-defence. They can then end up in court for having exercised what they—wrongly—think are perfectly proper measures for their own protection. We have to tell them that they are not proper, because there is clearly a lack of proportionality in using firearms in such circumstances.

Mark Francois: That individual was clearly completely exasperated and had complained to the police on many occasions, but as my hon. Friend the Member for Beaconsfield pointed out, the police were unable to help. What then should that individual have done?

David Heath: The hon. Gentleman raises an important point. It is one that we frequently come across in our constituencies. People say to us, ''I have been to the police on innumerable occasions, and nothing happens. I am not adequately protected.'' People in my constituency advice surgeries regularly say, ''I'll tell you what will happen next time: I shall have my shotgun.'' That may be a Somerset perspective, and it may be different in some inner-city constituencies. If the hon. Member for Nottingham, North (Mr. Allen) was here, he would doubtless pray in aid the even greater sanctions available on the estates in his constituency. However, we always advise people to use some sense about what is appropriate, and say ''I hear what you say, but do not believe that you are above the law, because you are not. Like everyone else, you are subject to the law.''
 The hon. Member for Beaconsfield made no mention of another area of civil liability that can cause a great deal of offence. I am thinking not of self-defence but of a spurious duty of care for those who intrude on one's property for nefarious purposes. I remember how outraged I was many years ago when I was a member of a local authority and lawyers advised us that we were required to erect lighting at a civil amenity site, and that it should be kept on all night, despite the fact that the byelaws said that the site should be closed at dusk. 
 No one had access to the site during the hours of darkness—if anyone was there at night it was to rifle through the skips and take what they could—yet we were advised that we had a clear duty of care to avoid their falling over or cutting themselves on the edge of the skip. We were required to spend public money for the avoidance of hurt to people who should not have been there, and who were explicitly forbidden by law from being there. That seems nonsense to me. We should consider what is an appropriate duty of care to those who are on one's property with nefarious intent, to commit crime.

Dominic Grieve: The hon. Gentleman makes a good point. I deliberately chose the most extreme example. The oddity is that it would be most unlikely that anyone would be prosecuted for breaking into a site and rifling through the skips as in the case that he cited. The provisions would not, therefore, be relevant in any case. Duties to trespassers certainly seem onerous sometimes. However, another issue concerns people who are injured while committing crime, not by any direct action of the homeowner, but simply because they trip on a floorboard in the house that they are burgling. That is taking to the point of absurdity any right of recovery, but technically such a right could exist.

David Heath: There may well be a case for an absolute prohibition on proceedings in such cases.

Mark Francois: Given the example that the hon. Gentleman has given, in which lawyers insisted that the body on which he served should take the course of action in question, and spend public money in consequence, is it any wonder that general election turnout is at 60 per cent. and falling?

David Heath: The hon. Gentleman must not divert me into a different debate, although I hear what he says.
 The contributory principle is to a great extent capable of dealing with the mischief that has been identified, but I understand what the hon. Member for Beaconsfield says about a preliminary hurdle that would establish whether the person committing the crime contributed so greatly to what happened as to make a civil action for recovery of costs inappropriate. I am not sure about the mechanism. It might be a matter for the judge in the original criminal case to assess, but that would take him outside normal criminal law practice. Perhaps there would have to be a separate hearing. However, I think that victims of crime have a reasonable expectation that they will not be unnecessarily or inappropriately pursued for recovery of costs, or threatened with that, by someone who has committed a crime against them. 
 I should want to whittle the matter down to a clear area of criminal behaviour. Perhaps the only appropriate cases would be those in which victims of an initial crime were themselves found by a criminal court to have acted disproportionately in self-defence, and were subject to criminal sanction accordingly. A mechanism for recovery of costs should be available in such cases, but with a filter to ensure that it is not used lightly or without good reason. 
 I do not accept the proposal of the hon. Member for Beaconsfield. There are many difficult cases that would fall foul of it, involving people who have committed crimes but who should not lose their civil rights with respect to other proceedings, since what has happened to them is out of proportion to the crimes that they committed. However, we need in this context a consideration that tends towards the reassurance of the public, and the maintenance of the basic principle that persons who commit crime contribute to their fate. That needs to be taken into account. The mechanisms set out by the law need to command the confidence of those who go through the courts as well 
 as of the general public, who are currently not satisfied that, in this instance, the law is not an ass.

Ian Lucas: I am sure that the hon. Members for Beaconsfield and for Woking are familiar with the old legal maxim that hard cases make bad law. From the outset, the hon. Member for Beaconsfield was cautious about the absolute new clause, and I sensed a certain embarrassment when he presented it to the Committee. I suspect that that embarrassment comes from the fact that, in discussing the new clause—the hon. Member for Woking referred to this—we are pandering to the reporting of individual cases in the tabloid press, which has misrepresented the current legal position. Such misrepresentation of the facts of certain cases is a bad premise on which to base new law. As has often been said in our discussions, we must not base legislation on knee-jerk reactions, so I call on the Minister to reject the new clause in its entirety.

Mark Francois: Several themes have run through our discussions, one of which is the fact that the public are losing confidence in the criminal justice system. We have a responsibility to address that issue, and the hon. Gentleman should be conscious of that.

Ian Lucas: I am very conscious of the lack of confidence in the criminal justice system among certain elements of the general public, but part of the reason for that is the misrepresentation of individual cases by newspapers, which on occasion beggars belief. It is wrong to make new law in an attempt to pander to the worst elements of the tabloid press.

Mark Francois: Is the hon. Gentleman seriously arguing that there are no material problems in the system and that it is all got up by the press?

Ian Lucas: If the hon. Gentleman had listened to the reasoned and measured contributions made by his colleagues, the hon. Members for Woking and for Beaconsfield, he would have heard them saying that very thing: that the press misrepresents the current system. We need to examine that issue, and I am glad that it has been raised.
 I want to correct at least one misrepresentation that has been made in Committee this morning about legal aid. I stopped practising as a personal injury lawyer in 2001, but as far as I am aware, legal aid is available nowadays only in a very limited number of personal injury cases. The only circumstances in which an individual is likely to obtain legal aid for a personal injury case is if that person is a juvenile. The Martin case is an example of that. The new clause's proponents must take that major issue into account. I should like them to concede at the outset that we are talking not about the generality of personal injury cases but about the limited class relating to juveniles. The concerns expressed by the hon. Member for Beaconsfield can be dealt with in the legal aid process. When an application for legal aid is made it is open to the defendant in any proposed civil proceedings to make representations to the Legal Aid Board and to claim that a grant of legal aid would not be in the public interest.

Dominic Grieve: The hon. Gentleman makes an interesting point. I did a great deal of personal injury
 work in the past, and on a number of occasions suggested to defendants' solicitors that the time had come for writing to the Legal Aid Board and pointing out the disgraceful waste of public money in the case—drafting letters and giving chapter and verse on the reasons. I cannot think of a single instance in which it was effective, notwithstanding that in each case the outcome was that the plaintiff recovered nothing.

Ian Lucas: I take the hon. Gentleman's point. I have written to the Legal Aid Board myself on occasion to point out the ludicrousness of the grant of legal aid to the other party in proceedings. The Legal Services Commission needs to examine that issue. It is curious that in such cases I always found it more difficult than my opposition to obtain legal aid for my client. I suspect that I may have been too honest in the applications that I made.
 A significant issue arises in a small number of cases in which individuals clearly should not have the benefit of public money to pursue personal injury cases. Cases must be considered in their own terms. The facts of each case are important, as we have heard from the examples given today. The only sensible course is to examine each case to determine whether legal aid is appropriate. There is a case for more open consideration between parties of whether legal aid should be granted. There is no provision, to my knowledge, for an oral hearing between parties to argue whether public money should be made available. That would be the helpful way to deal with the small number of cases that cause difficulty. 
 I do not accept that the broad-brush approach set out in the new clause would help. We need to focus on a small group of cases and examine them individually to establish whether public funding should be available for them, and to improve the current procedure. I expect a press release to issue from certain political departments as a result of the tabling of the new clause, but although I reject it, I recognise that we need to improve the present system to ensure that legal aid is not granted in ludicrous cases.

Hilary Benn: I greatly hope that the purpose of the new clause is not a press release. I did not think that that was the reason for our debate.
 I am grateful to the hon. Member for Beaconsfield for the helpful way in which he introduced a difficult issue. I think that this is what is known as a self-withdrawing, if not a self-defeating, new clause, for the reasons that he outlined. I recognise that it is a peg on which to hang our discussion, for reasons that have been discussed at some length and were first pointed out by my hon. Friend the Member for Wellingborough who, as usual, carefully reads what is before the Committee. 
 It is not a solution that any of us could vote for, but I understand some of the frustrations that have been fairly reflected by all who have spoken. However, I very much concur with the point that the hon. Member for Woking made about how these matters 
 are reported. It is often the case that when people know the full facts, which are not always or often reported, the picture is rather different. 
 I confirm what my hon. Friend the Member for Wrexham (Ian Lucas) said about legal aid. There was a significant change in the system in April 2000. The Access to Justice Act 1999 now means that most personal injury claims fall outside the scope of funding, with a few exceptions, clinical negligence cases being one example. The case of the gentleman who is suing Mr. Martin has obviously excited much attention, but he received limited funding to pursue a civil action before the change came into force. An individual in similar circumstances would no longer be able to receive funding. The hon. Member for Beaconsfield asked what could be done. The change in legal aid funding is one thing that has already been done, and means that such a circumstance will not arise again. 
 The hon. Member for Woking spoke extremely helpfully about reasonable force and self-defence. As he rightly said, what constitutes reasonable force will depend on the circumstances of each case. The courts can decide that only by having regard to all circumstances. What is reasonable force in any given situation will clearly depend on the nature of the threat. The level of force that could be used by a person to defend life is much greater than that which could be used to defend property. However, we all understand that in the heat of the moment it can be very hard for a householder to assess whether the person whom they see lurking in the grey light is a harmless thief or someone who has broken in to do them or their family serious injury. 
 It is for the courts to decide what was reasonable in all those circumstances and to have regard to and make allowance for what could be described as heat-of-the-moment panic. In considering the new clause, it may help the Committee to know that the courts have held that if a person does only what he honestly and instinctively thinks necessary to prevent a crime, that is potent evidence that reasonable defensive action was taken. What the law does not permit, of course, is aggression or angry retaliation. 
 Some hon. Members have been trying to answer the question that the hon. Member for Beaconsfield asked, and others have asked for more guidance to be laid down about what should be considered reasonable force. That may seem attractive at first sight, but for the reasons that I have mentioned, and the reasons that the hon. Member for Woking explained, it is very difficult to lay down definitive further guidance beyond the task that we have asked the courts to undertake, which is to have regard to all the circumstances before reaching a judgment.

Dominic Grieve: It would certainly be helpful in light of the Home Secretary's comments on the radio on Friday, if the Minister could let us know whether the Government have a view on whether something further should be done.

Hilary Benn: I was in an aeroplane over the Atlantic at the time, so the hon. Gentleman has an advantage over me in that I did not hear the words used by my
 right hon. Friend the Home Secretary when he spoke on ''Any Questions?'' that the hon. Gentleman referred to. Following this morning's debate I will certainly study those comments with even greater care. I simply make the point that, having thought about the matter, I do not think that it is possible to lay something down in the form of further guidance that would be helpful in dealing with individual circumstances and individual cases.

Humfrey Malins: I am especially grateful to the Minister for the way in which he is responding to the debate, because he has taken on board the need to consider the issue. I do not expect an answer now, but will the Minister undertake to consider the system in the criminal injuries compensation scheme, whereby the victim of an assault can recover damages from a public fund? I think that I am right in saying not only that contributory negligence applies in such situations but that on a preliminary hearing the Criminal Injuries Compensation Authority can knock a case out entirely on public policy grounds. Is there anything to be learned from that system? I do not expect that I am right, but will the Minister look at that?

Hilary Benn: I gladly undertake to reflect on the point that the hon. Gentleman raised in relation to the scheme. On what might be done, the hon. Member for Beaconsfield also talked about a preliminary hurdle to determine proportionality. I can see what he is trying to do, but it would be difficult to determine proportionality precisely without considering all the evidence. It is therefore hard to see how that could be done practically, by way of a preliminary hearing.

Dominic Grieve: I am mindful of that. However, in the sorts of cases that we have been talking about, there has often been a criminal trial beforehand, and the facts of what happened have been fully ventilated. Disputes on the facts, rather than on the application of principle to those, are therefore unlikely. The issue is not only to do with proportionality. As my hon. Friend the Member for Woking said, whether the action should be allowed to go ahead at all is a question of public policy. The two issues merge into one in the most extreme examples of a criminal's contributory negligence.

Hilary Benn: I understand the hon. Gentleman's point. In so far as there are changes that should be made to the system in the interests of promoting public confidence and ensuring that the system works effectively, any Government would need to continue to reflect on that point. This morning's debate on the new clause has helpfully illustrated the complexity and the fact that there are not simple solutions, which is why the hon. Gentleman will not press the new clause to a vote. In the end, the most appropriate way of trying to deal with such cases is to have in mind all the circumstances. We must also bear in mind the powerful point that my hon. Friend the Member for Wellingborough made about the effect that contributory negligence can have on a judgment about what is sensible, if any damages are to be awarded. Having said that, I am grateful to the hon. Member for Beaconsfield for having raised the issue by way of the new clause.

Dominic Grieve: This has been a most interesting debate and I am grateful to all members of the Committee and to the Minister for their contributions. As I hope that I made clear in introducing the new clause, I am mindful of the fact that it touches on complex issues. I shall go away and reflect further on the comments that have been made. I remain of the view that something further could be done to give public reassurance in a way that is wholly in accordance with the principles that the hon. Member for Wrexham has identified, yet without taking the absolutist stance that the new clause was designed to suggest, although it is possible to take such a standpoint. For present purposes, however, I express my thanks to those who have contributed to this debate on an important issue, and I beg to ask leave to withdraw the motion.
 Motion and clause, by leave, withdrawn.

New clause 27 - Joint and several liability for death or serious injury of a child

'.—(1) In the circumstance where a child suffers death or serious injury while two people have responsibility for it, and it is not possible to establish which party was responsible for the death or injury, the following shall apply and both parties shall be jointly liable to prosecution. 
 (2) After section 1 of the Children and Young Persons Act 1933 (c.12), there shall be inserted the following: 
 ''Section 1A—Ill-treatment etc.of children 
 If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons or exposes him or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), and as a consequence of such conduct the child or young person dies or suffers serious injury, that person shall be guilty of an offence, and shall be liable on conviction on indictment, to imprisonment for any term not exceeding fourteen years.'' 
 (3) Where in any proceedings against a person who has attained the age of sixteen years and who has responsibility for any child or young person under that age, for an offence of murder, manslaughter, assault or an offence contrary to sections 1 or 1A of the Children and Young Persons Act 1933, upon such child or young person evidence is given that the accused at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (4) below applies. 
 (4) Where this subsection applies— 
 (a) the court, in determining whether there is a case to answer; and 
 (b) the court or jury, in determining whether the accused is guilty of the offence charged, 
 may draw such inferences from the failure as appear proper. 
 (5) Where in any proceedings against a person who has attained the age of sixteen years and who has responsibility for any child or young person under that age, for an offence of murder, manslaughter, assault or an offence contrary to sections 1 or 1A of the Children and Young Persons Act 1933, upon such child or young person evidence is given that the accused at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, made a statement which incriminated any coaccused as to that offence, that statement shall be evidence against the coaccused in any trial or other proceedings in connection with that or a related offence.'.—[Vera Baird.]
 Brought up, and read the First time.

Vera Baird: I beg to move, That the clause be read a Second time.
 The new clause, in my name and those of my hon. Friends the Members for Brighton, Kemptown (Dr. Turner) and for Wrexham, is intended to deal with a situation to which the National Society for the Prevention of Cruelty to Children has recently given a lot of attention, which has resulted in a Law Commission report on the topic. The NSPCC has been concerned for some time about cases in which children are killed or seriously injured by their parents or carers. All too often, no one is convicted of those dreadful crimes, even though it is clear that it must have been one of two people who committed them. 
 The report ''Which Of You Did It?'' produced by a working group set up by the NSPCC and chaired by Judge Isobel Plumstead, which culminated in a conference in Cambridge on 2 November 2002, illustrates the extent of the problem. It shows that each week approximately three children under the age of 10, the majority under two years old, are killed by parents or carers. Over 60 per cent. of those deaths are as a result of skull fractures or similar injuries. 
 Of the 492 cases analysed by the NSPCC committee, only 366 had come to an end by the time that the committee reported. Of those 366 cases of death or serious injury to children, 99 resulted in a conviction, 21 in an acquittal and 21 in the case being dismissed—which must be by the judge. No further action was taken in 225 cases; they were not even brought to court. So slightly more than one quarter of those appalling cases gave rise to a successful prosecution. That is an immensely worrying statistic. On 20 December, the Law Commission sent me its interim consultation paper. That contains the proposals that form the backbone of new clause 27. 
 The real problem is that usually it is one of two people who have caused the death or injury. However, there is rarely evidence of a joint enterprise—that is, that the two agreed, or in some other way acted together knowingly, to cause the death or injury. Because both are there, when interviewed by the police either they make no reply—neither will say who did it—or each blames the other. 
 The consequence is that the Crown can show only that child A was seriously injured or killed when A and B were present. It cannot show that A and B acted together because there is no evidence, the likelihood being that A and B were the only people who were present. The silence means that there is no way in which—in the absence of another witness—the court can determine who is responsible. Of course, the one who was not responsible is entitled to be acquitted. If they blame each other, the rule of evidence is that what one defendant has said to the police in the absence of the other, is not evidence against the other. So if I am charged with my partner, and he blames me, that does not constitute evidence against me. It is said in my absence and only to a police officer in an out-of-court interview. Likewise, if I blame him, that does not constitute evidence against him. Consequently, the only real evidence at the end of the prosecution case is 
 that the child died in the presence of one of the parties. The judge must almost always stop the case because a jury that is directed as to the state of the evidence cannot possibly convict. 
 Those, then, are the evidential problems. There is also a linked substantive law problem, which we try to tackle in subsections (1) and (2). At the moment, people would probably be charged with murder, manslaughter and, as a back-up provision, with an offence contrary to section 1 of the Children and Young Persons Act 1933. That is pretty well what subsection (2) provides for, but there is a small addition. Section 1 of the Act allows someone who has assaulted or neglected a child to be convicted of an offence that carries a maximum sentence of 10 years. Usually, the charge is that both parties did all three things—that means that they committed either murder or manslaughter, with all the requirements that those entail, or that they neglected to protect the child against the other party. That is the import of the 1933 Act. 
 The difficulty foreseen by the Law Commission and the NSPCC is that section 1 contains a relatively low maximum sentence, although 10 years does not sound particularly low. In the scheme of things, however, those who are convicted of merely neglecting to protect a child tend to get sentences of two or three years. One view of such sentences is that they are insufficient to compel someone who may be an innocent party to speak about the other party. Consequently, we propose an increased sentence and an extra facet to section 1 of the 1933 Act, as set out in subsection (2). That, then, is the problem, and I have quickly outlined the solutions proposed in subsection (2). It is plain from what I have said that solutions are urgently needed. If children are being killed, as the evidence shows, something must be done. 
 At this point, I shall not go into the impact of deterrence on people who are aware that they are likely or, indeed, certain to be convicted. I take it for granted that everyone appreciates that deterrence is an important aspect in introducing any legislation.

Dominic Grieve: I confess that it has always struck me—the hon. and learned Lady may agree—that the crime with which we are concerned, horrific as it is, may not be particularly amenable to deterrence. Its causes and underlying nature relate to inability to control emotions and, often, to personality defects in the perpetrators. I suspect that such people may not readily respond to an increased sentence, given that any right-thinking person would understand that what they were doing was absolutely horrific.

Vera Baird: I paused and said that I would not go into deterrence, precisely because I did not know whether it would be necessary to grapple with it. However, the point obviously occurred to me.
 The issue is not as straightforward as saying that fewer people would do bank robberies if the sentence was increased to 30 years. Bank robbery is a calculated offence, but the offence that we are discussing is, one suspects, frequently a matter of loss of self-control. Instead, we must use an analogy. By all definitions, we 
 are talking about domestic violence, although the present offence is not usually what comes to mind when we talk about such things. By analogy, one can argue that deterrence can have an effect, the analogy being domestic violence. 
 People who commit domestic violence govern their households by fear, by force of personality, by the habitual use of violence or by being reasonable some of the time but using violence when crossed. They are not forced to exercise self-restraint because very, very rarely is domestic violence reported or prosecuted. Therefore they carry on in the notion that they have free will to govern their household in that unlawful way; they have no incentive to exercise self-restraint. People may know themselves to be bad-tempered and violent, and they can, if there is enough pressure on them, stop themselves. 
 It is in the light of such an analogy that we consider the proposed legislation. The legislation has two aims: to make conviction easier and to give greater encouragement to innocent parties to speak out. The person who habitually rules his household with violence, and in this example it is violence against a child rather than a partner, must know that the agencies of the state will take notice of cases of domestic violence. The police have active arrest policies; they try to investigate beyond the complainant's complaint to get other evidence to support her. They will take prosecutions when the complainant does not want a prosecution to be taken. The message goes out clearly to perpetrators that those who commit domestic violence will be caught, and that will encourage people to restrain themselves. We must hope that that message gets louder and louder as the proposals in the consultation paper on domestic violence are made into law. 
 People must recognise that if they use violence against a child, their spouse will be sufficiently intimidated by the penalties, or not protected by silence, to speak out. That will act as a deterrent; it will help people to exercise self-restraint when their baby is giving them grief or their toddler is being extremely annoying. I do not agree with the hon. Gentleman, but I am grateful to him for raising the issue. I hope that he finds my explanation of why I believe that he is wrong reasonably satisfactory, if slightly partial. 
 May we turn to the proposed solutions in new clause 27? They are not mine; they come from the Law Commission's December informal consultation paper. My understanding is that the commission will issue a more formal consultation procedure in a week or so, and at least before Easter. The consultation paper—this is my understanding and my understanding only—will contain fairly firm recommendations, including subsections (2), (3) and (4) of new clause 27. It will be a firm consultation, which intends, unless there is great outcry, to recommend legislation along the lines of new clause 27. The informal, and somewhat hasty, consultation that the commission undertook involved consultation of all the obvious consultees. Those subsections are buttressed by the commission's recommendations, which I expect to remain strong. 
 The Law Commission may not accept subsection (5). That subsection says that in any proceedings 
 against a person who has attained the age of 16, for an offence against a child, evidence is given by that person that incriminates the co-accused in the police station then, reversing the rule that I have just set out, what that person says shall be evidence against the co-accused, even though it was said in an interview at a police station in the absence of the co-accused. If the case involves myself and my partner, and if I say convincingly that he did it, that could not now be evidence against him—the judge cannot use it to say that there is a case to answer, nor can the jury use it as evidence to convict him, unless I repeat it in the witness box. That will change: under the Bill, what I said against him would be evidence against him right from the start and all the way through to the end.

Stephen Hesford: That would be an exceptional move if it was enacted. Is my hon. and learned Friend saying that if there was no rebuttal and that if no other evidence was put before the court, a jury could convict a person on the say-so of someone who had made an out-of-court statement in a police station? Would that be sufficient evidence for the purpose?

Vera Baird: Of course it would not be the only evidence, because the child would be dead; there would be injuries, it would be either A or B who had caused them, and there would be evidence against one or the other of them.
 Clause 98 and the clauses thereafter envisage someone being convicted by hearsay alone. The only reason why an account given in a police station by one against the other is not now admitted as evidence is that it is contrary to the hearsay rule. It is likely to be biased, but so would be evidence given in court by one co-accused who blamed the other. Well known and respected directions are given by judges, telling juries to be cautious about evidence given by someone who has an axe to grind, and there is absolutely no reason why a judge cannot give a similar direction to help a jury that might be overwhelmed by a statement made by A against B in a police station. Judges should be able say about that, too, that A obviously had an axe to grind against B, just as they can if the statement is given as evidence.

Dominic Grieve: Leaving aside my reservations about clause 98, which we debated extensively, the analogy is not a good one. By its very nature, a statement made in an interview under caution at a police station is known as a self-serving statement. It is in a completely different category from ordinary hearsay evidence, because although the person may incriminate themselves in such statements, it is often self-exculpatory. To use that as evidence on which another person can be convicted when the individual has never gone into the witness box to repeat it, raises the serious danger of miscarriage of justice.

Vera Baird: I take the point—it is clear and obvious—but the trend, in the Bill and in the general course of public policy, is to trust juries to take account of that basic and obvious point.
 Juries will, of course, think with care. They will look at the defendant who gave the account in the police station, and will listen to how it comes out in 
 court. That is a classic reason for police interviews' being video recorded, not simply recorded in audio form. That is another important trend that the Government are pushing for—and not a moment too soon. It would have force if, at the earliest opportunity, those involved in crimes, primarily witnesses or victims but also defendants, were required to give their account in a way that gave it maximum exposure to scrutiny by the fact finders who will, in due course, decide on the issue. One is not talking about a self-serving dead piece of paper that the jury will have problems evaluating. It will be essential, and it will follow from the legislation, that any such interview given to the police that is to be admissible, will be as real as if the defendant had given it in person. In rare circumstances, a defendant may give evidence over a live link or by video. I have encountered the odd case in which that has been done. 
 I advise the hon. Gentleman not to take too old fashioned a view of the rule about hearsay, which we have already waived until it is wider than any of us would have expected a year ago. This is another element of waiver, which is not particularly dangerous by comparison with the rest. It will be amenable to scrutiny. Both defendants will be in court to watch the interview being played to the jury and both will have the opportunity to go into the witness box, should they choose to do so, to say something about what A has said about B. Consequently, the appropriate tests will be far more readily available than they are in hearsay situations in which the person who has given the statement is not present or gave it at third hand. Even if there is a perceptible danger, the common sense of juries will ensure that there is no real danger; let us remember that we are balancing it against the death every week of three children under the age of 10. 
 Having made the argument about the aspect of the Law Commission's proposals that has met with the most resistance, primarily from the judiciary, may I mention the real possibility that what is said in the absence of B by A in a police station has already been made admissible by clause 98(1)(d)? I invite the Government to look at that with a great deal of care. If the resistance to subsection (5) of the new clause has come from the judiciary—and clause 98(1)(d) depends on a discretion used by the judiciary to admit such evidence—it is unlikely that it would be used to achieve that purpose. That is why I persist in saying that subsection (5) is important. 
 I return to subsections (3) and (4), which deal with the second lot of evidential changes proposed to tackle the problem. They say that in the case of such a death or serious injury, where a person is interviewed under caution by a constable trying to discover the truth and fails to mention any fact, the court may draw such inference as it deems proper in deciding whether there is a case to answer—that is, whether it goes beyond the half-time stage in a trial—and in deciding whether the person is guilty. That is not much of an extension to the current section 34 of the Criminal Justice and Public Order Act 1994, which says that if someone is 
 interviewed and does not mention something that he subsequently relies on as part of his defence, the fact that he did not mention it can be the subject of an adverse inference by the jury. That is about ambush defences—people who do not say at the time, ''It was not me, it was him,'' but try to rely on that in evidence. If there is a danger from that, it is one that the courts have become well used to controlling. I venture to suggest that there is not really a danger from it. 
 The only extension in the new clause is that under subsections (3) and (4) the court can draw an adverse inference merely from the failure to mention a fact. That is to say that if two people are together and a child dies in their presence, they must both know how it occurred. If neither A nor B explains it and they both stay silent, an adverse inference can be drawn from that silence, whether or not A subsequently goes into the witness box to give an explanation. As hon. Members will readily appreciate, the point is that there should be an adverse inference in a situation in which the people not only do not answer the police, but give no evidence either. The current adverse inference is of no use at all in that second situation. There is of course an adverse inference to be drawn from the failure to give evidence itself. However, the proposed adverse inference will in fact help to persuade people to give evidence. Little perceptible harm will come from the proposed change. I understand that the Law Commission intends to recommend that that change should come into law. The changes will mean that a case in which A and B both stay quiet instead of blaming each other will get beyond half-time, because the judge will be entitled to say, ''There is evidence against A which is derived from their silence in circumstances in which they should have explained it, and there is evidence against B which also derives from their silence in circumstances in which they should have explained it.'' It is the Law Commission's proposal that that adverse inference, together with an additional adverse inference if no evidence at all is given, will be sufficient to convict either of the parties of the offence. That does not seem to present any particular danger, but it is likely to cause the person who is not responsible to speak out. 
 Those two evidential changes are very important indeed and not at all harmful to the administration of justice. On the change in the substantive offence, new clause 27 proposes that there should be a new section 1A in the 1933 Act. Under section 1 of that Act, anyone who assaults, ill-treats or neglects—the Act lists other ways in which the offence might be committed—a child for whom they have responsibility is liable to sentence of imprisonment for 10 years. The proposed new section 1A says that for anyone who ''assaults, ill-treats, neglects''—the same ways of committing the offence are listed—a child and 
''as a consequence of such conduct the child or young person dies or suffers serious injury'',
 the sentence goes up to 14 years. The offence is exactly the same, but if as a consequence the child dies or suffers serious injury, the sentence goes up to 14 years. Part of the purpose of the provisions is to make an offence that can be committed by someone who makes 
 an assault, and thereby to catch the guilty person in that compendium offence. If, as in the present case, one makes the offence committable by someone who neglects to protect against the other party, that compendious offence will catch that person as well. That is the primary purpose of the provisions. 
 The secondary purpose of the provisions is to increase the sentence when death or serious injury follows, in the hope that the innocent party, who has merely neglected, will perceive that they will be likely to be blamed as badly, or very nearly as badly, as the person who has committed the offence, and as a consequence will speak out about who has done it. The new clause serves two purposes. It is a minor extension of the law, involves no mischief whatever, will assist the process of bringing such persons to justice and will be proposed by the Law Commission. 
 All the proposals have the dual purpose that I described: to bring people to justice, and, by encouraging people to speak out, to enable the courts and the public to have a proper resolution of what has happened, which they are now denied. 
 I know that the Government recognise the need for some change in the law and perceive that they must act on this major problem. I reiterate the fact that, if on average three children under 10 a week are killed yet only a quarter of people responsible are convicted, we are in an immense hurry to introduce new legislation to put an end to that situation. I invite the Government to think that they can, buttressed by the findings of the NSPCC and supported by the Law Commission's intent as I have understood it—it is open to them to check that my understanding is right—accept at least subsections (1) to (4) of the new clause.

Dominic Grieve: The hon. and learned Lady makes a powerful case, in her characteristic style. The subject-matter of the new clause must obviously cause any member of the Committee great anxiety and concern. I have no reason to doubt what the hon. and learned Lady said about the number of children being injured, and I have no idea whether the number of children being injured by their carers is rising or falling. I do not know whether the rate of such injuries has always been far too high, but has been concealed in the past, so that we now know of more instances because they are revealed more frequently, or whether the rate is rising and, if so, why.
 One can hazard all kinds of speculation, but as I think the hon. and learned Lady to an extent agreed, although the offences may on occasion be committed by people of a sadistic turn of mind, who suffer from serious, sometimes psychopathic, conditions, all too often they are the result of stress, emotions and an inability to exercise self-control. Most mothers of small children will admit that at some time in the course of bringing them up they have felt surges of massive frustration and temper that were never translated into anything more. We know of far too many examples now in which that experience is translated into violence. For half a century society's support structures have been consistently fragmenting, and perhaps the lack of them may be contributing to such offences. 
 If something can be done to reduce the incidence of those offences, the Committee should consider it. I accept that there is value in deterrence. The strong likelihood of conviction if people commit an offence may have an impact. However, the nature of the offence leads me seriously to doubt whether those committing it make rational judgments, at the time of the offence, about the likelihood of conviction. They commit the offence—which sometimes they bitterly regret afterwards—in a state of heightened emotions and lack of self-control, which, unlike the state of mind leading to some offences, is not readily amenable to deterrence. 
 That is not a reason not to change the law to bring about more convictions. A principle of the law is that we should bring to justice and punish those who commit wrongs—in the process doing our best, in any case, to bring a measure of protection to those who are at risk. That is a laudable aim. In the previous debate hon. Members properly pointed out issues of proportionality, and we need to take care that in a desire to achieve a result we do not throw away basic principles of justice in a way that, far from leading to the punishment of the wrongdoer, might lead to the punishment of the innocent.

Desmond Turner: I should have thought that the hon. Gentleman's arguments about the stress on the individual who committed the offence would argue in favour of mitigation rather than guilt. If the court was at all reasonable, the sentence would be mitigated if such arguments were made and stress factors were proven in the trial.

Dominic Grieve: I understand the hon. Gentleman's point, but, with respect, he has missed mine. Of course, he is correct, but my answer to the hon. and learned Member for Redcar (Vera Baird) related to the extent to which the certainty of conviction and detection acts to inhibit individuals who might commit such offences. It is a regrettable fact—the hon. Gentleman may have little difficulty agreeing with me—that people would still commit criminal offences even in the hypothetical situation where 100 per cent. of crimes inevitably led to conviction. That is particularly true of offences that result less from calculation and a process of balancing risk against gain than from what I am afraid are failings in our human nature—our temper, sexual desires and the like.
 This is a difficult issue, and I am simply making a point about deterrence. I made the same point to the hon. and learned Lady, and I do not want to labour it. She made the perfectly reasonable point that it was important for society to send the message that people who commit such crimes can be detected and convicted. However, that in itself will not end such offences.

Vera Baird: It is an ever-present fact that the self-restraint of a violent person is at its least when his victim is small or, quite often, female. If a giant were standing behind the intended victim, however, self-restraint might emerge as a more powerful force.
 The giant of the criminal justice system is exactly what I seek to put behind these poor children.

Dominic Grieve: The hon. and learned Lady makes a good point, but I do not entirely agree. Putting a giant behind everyone who was on the point of committing a criminal offence—particularly one involving the loss of temper—might be a powerful deterrent in terms of immediacy. Unfortunately, the criminal justice system cannot intrude into people's lives in that way. I do not want to labour the point, but the truth is that deterrence does not appear, in itself, to be a key element in preventing many categories of offence, because people will commit them as a result of their state of mind at the time.
 I move now to the second issue, which goes to the root of the provisions. I shall then explain how I view all three aspects, all of which have some merit. The setting for the abuse of and violence towards children is, as the hon. and learned Lady acknowledged, greatly complicated by the interpersonal relationships of the individuals who do the ''caring''. That was brought home to me when I was quite a young barrister and had a case involving violence to a child. My client was the girlfriend of a man who had taken her to stay in the house where his ex-girlfriend lived. The ex-girlfriend had a child, although not from the man, who also lived in the house, along with several other people. The child sustained injury, and the mother, who had close connections with the social services—they were concerned about the child's well-being—immediately contacted them, and they attended. My client was arrested and questioned, and she confessed to having beaten the little girl. During the trial, she also explained that the confession was not true and that she was protecting her boyfriend. We were able to establish that during her trial, and she was acquitted. The convoluted skein of relationships that ran through that most unhappy environment, including the various stresses and strains in the relationship between the two women and the man and the man's role in that household was an eye-opener to me as a young barrister of the complexities involved. 
 In cases such as those that the hon. and learned Lady cited, especially where there are two carers, a man and a woman, and a child and one carer is blaming the other, she will be the first to acknowledge that one problem is that rationality as regards the attitude of the person who may be the innocent party when they are interviewed by the police is often remarkably absent. The pressures in the relationship are often so great that they overcome and prevent an ability to tell the truth. Those may not be desirable factors, but we must bear them in mind, especially when we consider how the law may be properly altered in order to protect children and achieve convictions of guilty parties.

Desmond Turner: The hon. Gentleman's points precisely illustrate some of the difficulties that have existed for many years in prosecuting in those situations. The situation where one member of a partnership, normally the woman, protects the man is fairly common. I suggest to the hon. Gentleman that the
 woman's response might be rather different if, instead of facing the likelihood of no prosecution or simply a prosecution for neglect that might lead to a two-year prison term, she was faced with a charge of killing, which carries a 14-year term. It might just concentrate her mind and remind her that she should reveal the truth.

Dominic Grieve: Well, it might. As I shall explain, some parts of the new clause have great force. Equally, I can speak only from personal experience, which tells me that those people who are involved in relationships, particularly in relationships that are not working at all and that are dysfunctional, are often under psychological pressures of a kind that we who try to lead our lives in a relatively steady way have great difficulty understanding. I question whether the severity of penalty that may be hanging over that individual when they are being interviewed at the police station will actually have very much impact. The danger, which we must bear in mind as we construct any system, is that failing to recognise those factors can result in miscarriages of justice. The intention behind the new clause is not that innocent people should be convicted of offences. We want the guilty person to be convicted of the offence.
 With that danger in mind, I turn to the detail of the new clause. Subsections (1) and (2) may have considerable merit, especially in raising the sentence and in the wording of proposed new section 1A. I shall be interested in the Minister's reaction. I have not had an opportunity to find out the Law Commission's approach. However, my views are likely to be in line with the commission's, certainly on subsection (5). 
 Subsection (3) gives me cause for concern, although I see its aim. Perhaps the Law Commission will persuade me of its benefits. From my experience of the cases that I have dealt with, I am troubled about the possible consequences for an individual who has been charged with an offence against a child of not mentioning any fact that he could 
''reasonably have been expected to mention.''
 That does not take into account the complex tangle of relationships that may inhibit an innocent person from telling the truth in such circumstances. I put it to the hon. and learned Lady that that is a problem to be overcome. She made the point that a jury should be given the facts and should be able to disentangle them. However, it would require careful guidance and direction from a judge to point out that a wholly innocent person might have had understandable reasons for not telling the truth when being questioned by the police, as they might not have wished to incriminate the guilty person with whom they had an unhappy, although close, relationship.

Vera Baird: The hon. Gentleman will have noted that the new clause closely resembles clause 34—indeed, I more or less copied it. It shares an important property with clause 34: it will result in an adverse inference only if the accused fails to mention a fact that he might reasonably have been expected to mention at the time. As the hon. Gentleman knows, and the rest of the Committee will appreciate, courts consider the issue of reasonableness in great detail, and
 they can be required to do so by the advocate for the defendant. A woman might have received insufficient support in a police station, for example, but by the time she comes to trial sufficient support and advice ought to have been given to her to enable her to talk to her advisers and to ensure that the issue gets a fairer airing. We who tabled the new clause are well aware of that problem. However, I have set out the right approach to it.

Dominic Grieve: I am grateful to the hon. and learned Lady, and I do not disagree with her. However, as she may be aware, it is often difficult for those who represent such clients to get the coherent story that they need to defend them. In the case that I cited, it appeared that my client saw her boyfriend assault the child. However, at no stage of my instructions was I actually told that, even though I repeatedly pointed out the desirability of having that information for her sake and the fact that she had a duty to give it to me in the public interest—I never got it. It became an overwhelming inference during the trial, even though my client never said it in the witness box.
 I give that as an example of the sort of difficulty to which we must be alive. That said, I can see the reasoning behind subsections (3) and (4) and recognise that they could work. 
 Subsection (5), if I may use the expression in the presence of the hon. and learned Lady, gives me the heebie-jeebies. I find myself wholly unable to agree with it. The reason is that it drives a coach and horses through a well-established principle of law that is designed to ensure that miscarriages of justice do not occur. 
 If an individual suspected of committing an offence blames someone else when being questioned under caution at a police station, and those words are used in subsequent court proceedings as evidence against that person, yet the individual concerned never repeats them in the court and thus cannot be cross-examined on them, at the very least that puts into the air an issue that will be extremely hard for a judge, let alone a jury, to disentangle. Considered objectively, such words should be disregarded because, by their very nature, they were made as a self-serving statement. 
 I do not want to labour the point. I simply say to the hon. and learned Lady that I am wholly unpersuaded of its value, and very persuaded of its potentially pernicious effect. Far from leading to the result that she seeks, it must inevitably lead to individuals being wrongly convicted. 
 As I say, the great problem, which was encapsulated by the hon. and learned Lady, is that it will be abundantly clear that one of two people—sometimes, it may be one of three people—must have done something, but impossible to disentangle who it was. That problem, in part, is caused by our legal system, in that we do not convict people for being closely associated with criminals unless they are associated with the crime. The downside, of course, is that we may sometimes not be able to convict anyone. 
 I am prepared to take any reasonable steps to improve the situation. The hon. and learned Lady has presented a powerful case and suggested a number of 
 options, and I shall read with great interest the Law Commission's recommendations. However, the new clause goes much further than I am comfortable with: far from leading to the desired result, I am worried that it will lead in the opposite direction, with miscarriages of justice resulting in acquittals after the prison sentences have been served. That would bring the system of justice into disrepute, which would not be good for those whom we are trying to protect. We must bear that in mind when considering the new clause.

Ian Lucas: Public confidence is important. No situation comes to mind where the public feel less confident in the criminal justice system than a case in which it is clear that one of two people has committed the foulest of crimes against one of the most vulnerable members of society, namely a child. Unfortunately, our criminal justice system is incapable of dealing with that to the extent of bringing such individuals to justice. Public confidence must be at the forefront of our consideration—indeed, to me it is even more important than deterrence.
 I approach the matter with some diffidence, first because it is difficult and secondly because of my background as a criminal defence solicitor. It will help to look at the issue from the perspective of a criminal defence solicitor who is called to a police station to represent one of two people who is likely to have committed a serious assault on or killed a child. The right approach for that defence solicitor must be to advise his client under no circumstances to make any comment about what has happened. I say that because, under the present law, if that individual gives a full account of what has transpired, and that account suggests that the other person was responsible for the death, that statement will not form any evidence against the co-accused because of the well-established principle of law referred to by the hon. Member for Beaconsfield: a statement made in the absence of a co-accused cannot be evidence against that person. 
 However, if the defendant makes a statement in the police station admitting that he committed the offence, that is admissible evidence. The incentive for that person to give an account that blames another person is limited, because it will not be used in evidence unless, at a later stage, the person goes into court.

Dominic Grieve: I do not disagree with the hon. Gentleman. However, we are in danger of becoming somewhat fanciful about the reasoning powers of those who are being interviewed at a police station. For somebody who is being interviewed under caution, having had it alleged against him that he has committed a serious offence, the easiest thing in the world to do, if he wishes to get himself off the hook and is prepared to do it, is to blame somebody else. It happens frequently, not just in the context of this sort of offence. I am not always sure whether such defendants do it in the knowledge that it will have no impact on the subsequent court proceedings. Of course, a seasoned bank robber might know that very well, but I have doubts in the case of the people at whom the new clause is aimed.

Ian Lucas: I wonder whether I can answer the hon. Gentleman's very sensible intervention by referring to a case that I dealt with when I was a very young solicitor. It was completely different in content from the issues that we are discussing, but it was extraordinary in that it involved three 11-year-old girls who went to Birkenhead and, for reasons that were not altogether clear, together removed mooring ropes from a ferry, which drifted out into the Wirral estuary and caused substantial damage to another vessel. Two of the three girls gave a full account of what had happened. Both of them said that all three had, together, removed the mooring ropes.
 I represented the third girl. On my advice, she said nothing. As a result, I made a submission halfway through the proceedings that meant that those individuals who had given a truthful account went on to the second stage of the trial and were, no doubt, ultimately convicted of the offence, and the defendant whom I represented was quite properly acquitted. I can remember to this day the magistrate saying to the girl, just before she was discharged, ''Don't you ever do it again.'' That illustrates the perverse incentive for somebody who is in that situation not to co-operate with the prosecuting authorities. 
 When I hear the figures that my hon. and learned Friend the Member for Redcar set out earlier about the number of children who are killed, it seems to me that in the very limited circumstances outlined in subsection (5), we need to improve the law.

Stephen Hesford: I am not sure where my hon. Friend's argument is going. He seems to be arguing that people should set out a narrative because he wants them to talk to the police. However, that does not necessarily mean that what they say will have the evidential value sought in the new clause. In his example, the girl did not talk, but had she done so, she would have been talking for the purpose of convicting herself, not the other two. There is a confusion in that regard.

Ian Lucas: I respect my hon. Friend's point. The thrust of what I am saying is that I want there to be an incentive on the individuals responsible for the care of the child to co-operate with the police and the prosecuting authorities in giving an account. In the present situation, there is a disincentive to co-operate, and the law does not deal successfully with that most serious matter.
 The hon. Member for Beaconsfield coherently and skilfully set out the arguments against the new clause, but the proposed change in the law would have a restricted application in the limited circumstances set out in subsection (5). I pray in aid my hon. Friend's point that we want the information to go before a jury so that they can make an assessment in the light of any caveats and guidance from the judge. 
 We must improve the law. Given the gravity of these cases, and the number of the most vulnerable members of our society who are killed because of defects in the law, action is needed. That is why I subscribed to the new clause. Against all my natural inclinations, I believe that that was the right thing to do.

David Heath: We have had an interesting debate, thanks to colleagues who are learned in the law. I am grateful to the hon. and learned Member for Redcar for tabling the new clause.
 It is a common view that infanticide is a particularly repugnant crime. There is clearly great cause for concern given the huge disparity between the number of successful prosecutions in cases where the death of a child is reasonably assumed to have been at the hands of a person who had charge of him, and those where it was at the hands of a stranger, for which the conviction rate is much higher. 
 We need to improve the way in which we deal with several issues. The law is one, but there are others. The disparities between different investigatory authorities around the country are a matter of concern, and there is scope for better protocols for the investigation and preparation of cases. There are undoubtedly issues about expert witnesses, which is perhaps the other side of the coin. Recent cases have given us serious cause for concern about the credentials of such witnesses in cases of child death. There is concern about whether they are properly qualified to provide the evidence that is marshalled in prosecution and defence cases. 
 I return, however, to the perceived lacuna. The hon. Member for Beaconsfield dwelt on matters of mitigation, but whatever case may be made in mitigation, it is a matter of concern if no successful prosecution is concluded after a crime has clearly been committed, for which the evidence is the death or serious injury of a child, and the perpetrator can only be one or all of a limited number of people who had charge of the child. 
 The public are right to be concerned that the legal system does not adequately serve the interests of justice or protect the child. That is why I entirely agree with the hon. and learned Lady on most of the new clause. However, I have a serious reservation about subsection (5). I am not sure that it advances the case. The problems that it would introduce would probably be greater than the mischief that it would remedy and I should have been happier if the new clause had not included it. 
 The other provisions would strengthen the law and would provide a response to the perception that the law at present fails. If not now, when? We have had this discussion before and there is always another criminal justice Bill coming along, but this is a matter of urgency. The numbers and the severity of the issue speak for themselves. If there is an opportunity to take heed of the Law Commission's proposals and the strong lobbying by interested bodies outside the House of Commons, which see a need for change, there is an argument for using the present Bill to respond now, rather than at some unspecified future date. 
 I shall be interested to learn whether the Minister considers that there is a case for accepting at least the earlier subsections. It is of little interest to me whether they are passed in their present form or another of the Government's devising, but I am interested in ensuring that any gap in current provision is dealt with, and in preventing people who have murdered a child from 
 walking free from court simply because the legal system is incapable of dealing with the case.

Desmond Turner: I apologise for not being present to move the new clause. One should never put one's faith in modern technology, because it lets one down at crucial moments: my pager failed to go off.
 I am grateful for the generally supportive comments of the hon. Member for Somerton and Frome (Mr. Heath). He approaches the matter with the same attitude as me. I am a relatively well-informed member of the public, but not a lawyer. I have been closely concerned with social services as a local politician, and have come across cases of the kind that we are discussing. One in particular, in my constituency, aroused my interest in the subject. A total of four children died at the hands of the couple in question. They were prosecuted for the murder of three, but the child protection agencies between them failed abysmally. The failure was not far short of the scale of the failings in the Climbié case. The narrative in the area child protection committee report was almost as harrowing to read as that in the Climbié report. 
 The couple were charged with murder. The judge stopped the case halfway through and ordered acquittal because it was unclear from the evidence which of them had done it, although one could have drawn very strong inferences from the fact that the male member of the couple was an extremely aggressive person, to the extent that social workers, health visitors and nurses were terrified of visiting the property, so they did not. The woman was clearly terrified out of her wits. They were finally prosecuted for neglect and received sentences, if I remember correctly, of three and two years, which is very mild considering that they had caused the unlawful deaths of three babies. My hon. and learned Friend the Member for Redcar has already recited the statistics, which make sad reading.

David Heath: The hon. Gentleman is probably aware that much of the statistical work was carried out in his constituency by Sussex police.

Desmond Turner: Yes.

David Heath: And I have no reason to suppose that the situation in Sussex is abnormal.

Desmond Turner: The hon. Gentleman is right. The statistics were gathered on the initiative of a detective inspector in Brighton who was involved in the case. He took it on himself to carry out a survey of 43 police
 forces in England and Wales and he gathered statistics from 40 of them. The statistics were horrendous. In three years, 492 children were killed or unlawfully injured. On prosecutions, no action at all was taken in more than 50 per cent. of cases. Clearly, prosecutors are deterred from bringing prosecutions by the difficulties that result from the present state of the law and the way in which it is applied by judges. They will not bring prosecutions that reflect the gravity of the offence for fear that the judge will dismiss them or that they will not proceed to the end. That cannot be justice. Justice is striking a balance between convicting people who have committed crimes and avoiding miscarriages of justice as a result of convicting the wrong people. The balance has tilted to the wrong end of the scale and we need to bring it back towards the middle to allow the public to know that a case as serious as causing death will be prosecuted in a way that reflects its gravity. After all, in the case of the murder of an adult, no one hesitates for a moment.
 As the hon. Member for Beaconsfield said, many children die without any prosecution being brought. I do not know the precise statistics, but I suspect that the percentage of cases involving the deaths of very young children that do not lead to a prosecution is much higher than the percentage of murders of adults for which no one is prosecuted. The public would have every right to be concerned if the same percentage of murders of adults went without prosecution, especially if, as in the case of the murder of children, there were obvious suspects and one knew from the outset that no one else could be involved. There is not just a lacuna in the law but a gaping hole. 
 I have been lobbying the Home Office on that for four years. As a result of the case in my constituency that I mentioned, which was shortly followed by another in Brighton and Hove, I lobbied the then Home Secretary, who took the issue seriously and promised to refer the matter to Lord Justice Auld. Unfortunately, Lord Justice Auld's report made no reference to the issue, but I thought that the Criminal Justice Bill, which was coming down the tracks, presented an opportunity to deal with the problem that should not be missed. I know that the Secretary of State and the Minister are seized of the problem. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.